WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20061205

DOCKET: C41758

COURT OF APPEAL FOR ONTARIO

CRONK, MacFARLAND and LANG JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Nicholas A. Xynnis,

for the appellant

Respondent

• and -

J. H.

Tracy Stapleton,

for the respondent

Appellant

Heard: October 3, 2006

On appeal from the conviction entered on November 21, 2003 and the sentence imposed on February 17, 2004 by Justice Margaret F. Woolcott of the Ontario Court of Justice (Youth Court).

LANG J.A.:

[1] The appellant appeals his conviction for sexual intercourse with a person under fourteen. The accompanying charge of sexual assault was conditionally stayed. The complainant is the appellant’s stepsister. The Crown alleged that the offences, which involved one act of sexual intercourse, occurred when the appellant was sixteen years old and the complainant was twelve. The appellant, who is now age thirty-six, also appeals his sentence of six months secure custody, three months community supervision and fifteen months probation, a sentence imposed under the Youth Criminal Justice Act, S.C. 2002, c. 1 in light of the appellant’s age at the time of the offences.

[2] The appellant pursued two grounds on his conviction appeal. First, he argues that the trial judge erred in admitting similar fact evidence. Second, he challenges the trial judge’s assessment of the credibility and reliability of the witnesses.

[3] In my view, because the similar fact evidence was largely inadmissible, I would allow the appeal and direct a new trial. Accordingly, it is unnecessary to address the other ground of appeal or the sentence appeal.

Background

[4] The appellant is the son of Barry H. After Barry H. separated from the appellant’s mother, he began living with and later married Nancy H., who had been the family babysitter. The appellant resented this relationship.

[5] Various children resided with the new family, including Nancy H.’s daughter (the complainant) and the complainant’s brother. The appellant’s half brother and half sister also resided periodically with the new family. The appellant lived with the family for lengthy periods, interrupted by other periods when he lived with his mother.

[6] By all accounts, the appellant moved between his biological parents’ homes five to ten times when he was between six and sixteen years of age. These moves were usually initiated by one of his biological parents when the appellant’s conduct became too disruptive for the particular household to manage. As a result of the appellant’s frequent problem behaviour, including unacceptable and alarming temper tantrums, the complainant came to dislike him intensely.

[7] After one of the appellant’s lengthy absences, the complainant’s mother and Barry H. told the complainant that the appellant would be returning to live with the family. While the complainant objected and threatened to run away, her mother and stepfather, with whom she was close, persuaded her to give the appellant another chance. They assured her that he had changed his ways. The complainant acquiesced.

[8] According to the complainant, the appellant sexually assaulted her the morning after his return. The complainant provided what the trial judge described as a “bare bones account” of the assault. The complainant and the appellant were alone in the house. After taking her morning shower, the complainant returned to her bedroom wrapped in a towel. The appellant came to her door “arguing about how I had taken his father away from him. Telling me how he was going to make me hurt like I made him hurt over his dad.” The complainant testified that the appellant threw her on her bed, grabbed her wrists, held her hands above her head, forced himself on top of her and had intercourse with her. The appellant threatened to hurt her if she told and, a short while later, left the room. She told no one. The complainant could provide little further detail about the assault.

[9] The complainant testified that she ran away from home the same day as the assault and lived on the streets for the next six years. From the mother’s perspective, the complainant left home because “she got into a bad crowd” and was stealing. As the complainant’s mother recalled events, the complainant only left home a year later and, at least initially, lived at home about 25% of the time. During the years the complainant was away, she developed problems with alcohol and drugs. As well, she was convicted of forgery in 1991 and fraud in 1996 and again in 1998.

[10] When the complainant was sixteen, her mother visited a psychic to learn why her daughter had gone from being a “good” to a “really nasty” person. As a result of that visit, the mother asked the complainant whether she had been hurt by a male. The complainant said that she had been and identified that male as the appellant. She provided no particulars other than to say that she did not want to pursue any complaint. After this conversation with her mother, the complainant entered drug and alcohol treatment. She did not complain to the police about the sexual assault, which was alleged to have occurred in either 1986 or 1987, until 1999.

Earlier sexual activity

[11] At trial, the complainant testified that she feared the appellant because she witnessed the mental abuse his conduct caused her family. The Crown led evidence of the appellant’s disruptive behaviour, including his temper tantrums.

[12] The Crown also sought to lead evidence of earlier sexual activity alleged by the complainant, specifically:

1. When the complainant was five or six years old, the appellant asked her to place his penis in her mouth and she did so. The complainant testified that this took place in a closet when they were playing with dolls in a sexual way.

2. When the complainant was eight to ten years of age, the appellant placed crystal drink powder between her legs. The powder burned. The appellant placed his face between the complainant’s legs “to clean it up.” However, because the powder hurt so much, the complainant got up and washed it off.

The complainant did not testify to any element of physical coercion in these incidents.

[13] The complainant also testified that the earlier sexual activity did not lead her to fear that the appellant would sexually assault her when he moved back into the house.

[14] The complainant’s mother was not aware of the two incidents recited by the complainant, but testified that she was aware of a third incident that the complainant did not remember. That incident occurred when the complainant was three or four years old and the appellant was seven or eight. At that time, the mother walked into the master bedroom and saw the appellant licking the complainant’s vagina. The appellant was told that his behaviour was wrong and that it was not to be repeated. The complainant was told to tell her mother if anything like that ever happened again. The mother agreed that this incident was an isolated one that could be characterized as juvenile sexual experimentation. As a result of this incident, the mother testified, she did not leave the complainant and the appellant alone in the house.

[15] The mother confirmed the complainant’s evidence about the appellant’s disruptive behaviour. One particular occasion remained prominent in her mind, although she was unable to pinpoint the appellant’s age at the time of this incident beyond saying that he could have been ten, eleven, twelve, thirteen or fourteen. On that occasion, after an altercation about washing the dishes, the appellant locked himself in a bathroom. The mother called her brother to come over to the house to help. She also telephoned her mother and father, as well as a friend of the appellant. When the appellant refused to come out of the bathroom, the tension escalated. The family tried to force the appellant out by removing the hinges from the bathroom door. In response, the appellant yelled out the bathroom window that his family was trying to kill him. The appellant found a knife that was in the bathroom for construction purposes and stuck it through the gap at the side of the door, warning everyone to leave him alone. The appellant’s stepmother testified that the knife narrowly missed her. The complainant was present at the time of this incident. Both mother and daughter attested to the incident as an example of the appellant’s out of control behaviour. The complainant testified that the incident increased her fear of the appellant.

The Voir Dire

[16] The Crown sought to introduce the evidence of the three incidents of earlier sexual activity and the knife incident as evidence of prior discreditable conduct or similar fact evidence “to assist the court in understanding the circumstances of … [the sexual assault] and to support the way in which the complainant reacted and the delay in the disclosure in this particular case.”

[17] Counsel agreed that R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 (S.C.C.) required a four-stage inquiry: whether the proposed evidence was: (i) the conduct of the accused; (ii) relevant and material; (iii) discreditable to the accused; and (iv) probative to the extent that its probative value outweighed its prejudicial effect. Counsel agreed that the first and third criteria were met.

[18] On the second criterion, relevance, the Crown argued that the evidence would “contextualize” the complainant’s relationship with the appellant, specifically their sexual history. The knife incident, the Crown argued, was relevant to the atmosphere in the home, the way the complainant responded to that atmosphere, why the appellant wanted to hurt the complainant as the favoured child, and why the complainant waited so many years to bring the assault to the attention of the police. The Crown also argued that all the incidents were relevant to the appellant’s motive or animus toward the complainant, as well as to the narrative.

[19] In response, the appellant argued that the proposed evidence showed only a few isolated incidents and did not disclose a pattern of conduct that reflected on his ongoing relationship with the complainant. Moreover, the appellant argued, the incidents might be characterized more accurately as juvenile sexual experimentation and not as sexually assaultive conduct indicative of animus. Finally, the appellant argued that the evidence was highly prejudicial and lacked any similarity to the complainant’s allegations of forced sexual intercourse.

[20] The trial judge ruled the evidence of all four incidents admissible as similar fact evidence. She found that the sexual incidents had sufficient similarity because:

[T]hey all involve overtly sexual conduct between essentially unequal participants and it all relates to genital sexual contact; that they all occur in the bedroom area of the house and for the most part in the complainant’s bedroom.

[21] The trial judge concluded that the earlier sexual conduct and the knife evidence were relevant and material to the credibility of the complainant and to motive, and were: “powerful evidence against the accused as it would tend to support her version of events relating to the offences alleged [and] serve to explain why she reacted in the way she did.”

The trial and the reasons for judgment

[22] The only witnesses at the trial were the complainant, Nancy H., and the appellant.

[23] After a four-day trial, the trial judge convicted the appellant. In her reasons for judgment, the trial judge largely accepted the evidence of the complainant and her mother, including the similar fact evidence.

[24] Although the trial judge acknowledged the complainant’s evidence lacked detail about the earlier sexual incidents, she concluded that the complainant’s admission that she could not remember particulars served to support her truthfulness. Similarly, she concluded that the complainant’s criminal convictions did not reflect adversely on her credibility because the complainant acknowledged her record and earlier dishonesty.

[25] The trial judge rejected the mother’s evidence that she never left the appellant and the complainant alone in the house on the basis of the evidence that neither the complainant nor the appellant were aware of such a rule. However, there was no evidence from the mother that she had ever informed the complainant or the appellant of such a policy.

[26] The trial judge rejected the evidence of the appellant on several grounds, including his troubled past, his mental health, his violent episodes, his “skewed” view of his past, his brain damage from a 1992 accident, his admitted memory problems and his acknowledgment of an ability to block out events.

[27] The trial judge’s reasons begin with her consideration of the similar fact evidence. She repeated that she had admitted that evidence for the limited purpose of assessing credibility and providing context. She found that this evidence was “valuable in considering what [the complainant’s] relationship was with [the appellant]”, that the earlier sexual contact was capable of showing that the complainant was “uncomfortable with and afraid of [the appellant] when he was in the home” and that the incidents “explain the context of the relationship and the living situation and… explain why the complainant and the accused may have behaved in a particular way.” The trial judge found that all the incidents caused the complainant to be afraid of the appellant and explained her delay in disclosure.

[28] In the result, the trial judge concluded that the Crown proved the offences beyond a reasonable doubt, based on the credibility of the complainant and because her evidence was “believable in the context of the household.”

Analysis

[29] I will deal first with the similar fact evidence concerning the earlier sexual conduct because, in my view, the inadmissibility of that evidence is determinative of this appeal. I will then deal with the admissibility of the evidence of the knife incident, which, in my view, is better left for the determination of the trial judge in the context of the evidence at the new trial that I conclude is required.

Sexual conduct evidence

[30] The evidence of the earlier sexual conduct is said to be relevant to the two offences with which the appellant was charged, both of which relate to the single act of non-consensual sexual intercourse.

[31] Presumptively, similar fact evidence is not admissible because it tends to prejudice the accused. Prejudice can arise from the danger that the trier of fact will use the evidence to conclude that, since the accused conducted himself discreditably in the past, he is likely to have done so on this occasion. This propensity reasoning may shift the jury’s focus away from the offence with which the accused is charged and “may also capture the attention of the trier of fact to an unwarranted degree”, resulting in a trial of the accused for crimes other than those charged: see Handy, supra, at para. 37. For these reasons, similar fact evidence is only admissible in certain exceptional situations.

[32] Initially, the exception for admitting similar fact evidence was established for identification purposes when the distinctiveness of the accused’s prior conduct amounted to “hallmark” or “fingerprint” evidence that identified the accused as the perpetrator of the offence charged. The rationale was that the similarity of the earlier acts to the charged offence could not be explained by mere coincidence.

[33] In Handy, the Crown sought to introduce similar fact evidence for a different purpose: to bolster the complainant’s credibility on a sexual assault charge where the complainant alleged that, while she consented to vaginal sex with the accused, she did not consent to the accused punching and choking her in the course of that sex. Specifically, the Crown proposed that the accused’s former wife testify about the appellant’s predilection for painful sex.

[34] This court’s conclusion that the evidence was not admissible to bolster credibility was upheld by the Supreme Court of Canada, which conducted a thorough review of the admissibility of similar fact evidence where the identity of the perpetrator is not the primary issue. The Supreme Court confirmed that the exception to the inadmissibility of similar fact evidence is a narrow one, which is available only where the Crown shows that the particular evidence is relevant and material and its probative value outweighs its prejudicial effect. In determining the admissibility of similar fact evidence, it is important to identify the “issue in question” to which the similar fact evidence is said to be relevant. Credibility, the court cautioned, may be too broad a gateway to serve as the “issue in question”: see Handy, supra, at para. 116.

[35] As I have said, in this case, the trial judge held that the similar fact evidence was relevant to various issues, including the credibility of the complainant, the relationship between the complainant and the appellant, the context, motive, animus, the appellant’s relationship of violence with his family, and in determining whether the complainant’s delay in reporting the incident affected her credibility.

[36] The numerous purposes of admission enumerated by the trial judge do not convey clearly the issue to which the evidence of the earlier sexual conduct was relevant. The fact that the complainant was telling the truth about the earlier sexual conduct could be relevant either because that earlier conduct lent credence to her explanation for her delayed reporting of the later sexual assault or because the earlier conduct made it more likely that she was telling the truth about the later sexual assault.

[37] The earlier conduct, however, could not be relevant to the delayed reporting because the complainant did not testify that the earlier sexual incidents made her fear the appellant. To the contrary, she testified that her fear of the appellant arose from his violent temper tantrums in the home, including the knife incident. Accordingly, the earlier sexual conduct was not admissible to explain the delayed reporting.

[38] Arguably, the complainant’s truthfulness in her evidence about the earlier conduct was seen as supporting her truthfulness about the later sexual assault. However, the Crown is not allowed to lead evidence about the complainant’s truthfulness on matters not relevant but only collateral to the charges at issue. Accordingly, to be admissible, the evidence had to be relevant for some other permissible reason.

[39] That reason must be that the earlier sexual conduct was so similar to the later sexual assault that it rendered it more likely that the later assault took place. In other words, the complainant’s credibility about the earlier conduct enhanced her credibility that the later assault occurred because the similarity of the incidents could not be coincidental.

[40] Indeed, a reading of the trial judge’s reasons indicates that she used her finding that the complainant was credible about the earlier sexual activity to conclude beyond a reasonable doubt that the appellant committed this offence. Although framed as relevant to credibility generally, it appears the trial judge concluded that, since the appellant engaged in the earlier sexual activity, he committed the offences at issue. This propensity reasoning is not available when the earlier conduct is not sufficiently similar to the assault charged.

[41] In my view, the evidence of prior sexual contact does not meet the test for admission as similar fact evidence for several reasons.

[42] First, there were significant dissimilarities between the earlier conduct and the offences charged. The trial judge, as did the trial judge in Handy, paid “insufficient attention to the dissimilarities.” See Handy, supra, at para. 123. The earlier conduct was similar to the offences alleged only to the extent that both involved sexual conduct in the children’s home when they were alone in a room together.

[43] None of the earlier acts involved intercourse. Importantly, none of the earlier acts involved a vindictive attack by the appellant on the complainant because he was jealous about her close relationship with his father. As well, none of the earlier acts involved physical coercion. Moreover, the evidence as a whole suggested that one or two, if not all three, of the earlier acts could be properly characterized as juvenile sexual experimentation and were not indicative of a propensity for aggressive sexual conduct on the part of the appellant. Simply put, there is no distinct unifying feature connecting the earlier acts to the forced sexual intercourse alleged.

[44] Second, there was no temporal connection to the offences charged. The three earlier acts occurred over a five to seven year period; the last one occurred as many as four years before these offences.

[45] Third, intervening events between the earlier acts and the offences charged serve to distinguish the nature and purpose of the appellant’s conduct. All the earlier events occurred while the appellant was residing more regularly with the family as an accepted (albeit difficult) member of that family. The sexual assault at issue was alleged to have happened the day after the appellant returned to the family home on terms akin to probation, in circumstances where the complainant had openly expressed her objection to his return and the complainant and the appellant had developed an overtly negative relationship.

[46] Fourth, the three earlier acts all occurred years before the complainant reached puberty and, for the most part, before the appellant reached puberty. Neither child was sexually mature at the time of the earlier conduct.

[47] Finally, the complainant testified that she had no reason to suspect from these events that the appellant would sexually assault her when he returned to the house some years later. In other words, the complainant did not believe, based on the earlier sexual conduct, that the appellant would sexually assault her.

[48] For these reasons, in my view, the evidence was not admissible.

[49] In argument, the Crown relied on the recent decision of this court in R. v. R. (B.S.) (2006), 2006 29082 (ON CA), 212 C.C.C. (3d) 65 (Ont. C.A.). That case involved domestic assault charges against the husband arising out of three assaults alleged to have occurred during a two-week period. The Crown called evidence about the nature of the relationship between the parties and, in particular, the hostility of the husband and his attempted domination of his wife throughout their marriage, occasionally amounting to physical abuse.

[50] In my view, the facts in R. (B.S.), supra, distinguish that case from this one in four important ways. First, and importantly, the defence counsel at trial in R. (B.S.) acknowledged the admissibility of the evidence, presumably for its own tactical purposes, and left the decision as to the weight to be given to the evidence to the judge.

[51] Second, the evidence about the domination exerted by the husband during the marriage was part of a continuous and escalating conflict between the spouses that was relevant to explain the state of their relationship at the time of the alleged assaults and the complainant’s incremental disclosure.

[52] Third, in R. (B.S.) the complainant’s evidence relating to the prior conduct was much more detailed than the evidence in question here and was supported to some extent by medical evidence. While the trial judge here did not doubt that the prior acts, in fact, had occurred, it must be remembered that the first thing to consider in weighing probative value is the strength of the evidence that the alleged similar acts actually occurred.

[53] Finally, unlike this case, in R. (B.S.) there was a clear temporal nexus between the prior conduct alleged and the predicate offences. As I have indicated, no such nexus exists here.

The knife evidence

[54] As the result of this appeal will be a new trial, in my view it is preferable to leave a determination of the admissibility of the evidence of the discreditable conduct relating to the knife incident to the judge at that new trial. This judge will be in a better position to determine its admissibility on the basis of the Handy criteria, bearing in mind its relevance to the complainant’s or the appellant’s behaviour, the degree of prejudice to the appellant, and the availability of other evidence on the question. On the last point, it may be that the evidence of the appellant’s disruptive conduct and bizarre temper tantrums, if accepted, is adequate to support the Crown’s position that the complainant feared to report the assault. See Handy, supra, at para. 83. This, however, is a matter best dealt with in the context of the evidence led at the new trial.

Result

[55] Since the similar fact evidence was the central evidence of this trial, it cannot be said that the result inevitably would have been the same without the admission of that evidence: the proviso does not apply. I would allow the appeal, set aside the conviction and the conditional stay, and order a new trial.

RELEASED: December 5, 2006

“EAC” “S.E. Lang J.A.”

“I agree – E.A. Cronk J.A.”

“I agree – J. MacFarland J.A.”